MOTIVATION FOR A CHARTER OF RELIGIOUS RIGHTS

AND FREEDOMS

  1. Section 234 of the Constitution of the Republic of South Africa, 1996, provides that “in order to deepen the culture of democracy established by the Constitution, Parliament may adopt Charters of Rights consistent with the provisions of the Constitution”. Any such charter of rights will then have the force of law. The Constitution envisages, in other words, that the rights in the Constitution may be further extended, supplemented and given content by way of such additional charters.
  1. The space created by section 234 for a charter of religious rights and freedoms provides religious institutions with a golden opportunity to take the initiative in a matter that is crucially important to every religious person and institution. In an open, free and democratic society it cannot be left to the state alone to determine the content of our rights, and civil structures such as religious institutions should make a contribution in areas in which they have a direct interest and of which they have intimate knowledge. If, through a process of consultation and negotiation, religious institutions succeed in submitting to the state a consensus proposal for a charter of religious rights and freedoms, the state will hardly be able to ignore it or impose its own views instead. Thus, religious institutions will be able to leave their own significant imprint on the content of the right to freedom of religion and on the evergreen question regarding the relationship between religion and the state.
  1. The Constitution creates this space for additional charters of rights because most rights guaranteed in the Constitution are described in cryptic, vague and general terms. The intention is that society, including the state by way of legislation and other measures, and the courts through their judgments, should over time give further content to these rights. For example, the right to freedom of religion is protected in so many words in section 15 of the Constitution, but it provides very little else about the content of the right.
  1. In the case of several rights in the Constitution the state has already adopted separate acts of Parliament to further describe the content and application of the rights concerned. The following examples may be mentioned:

(a)Section 9 (the right to equality): the Promotion of Equality and Prevention of Unfair Discrimination Act, Act 4 of 2000

(b)Section 23 (labour rights): the Labour Relations Act, Act 66 of 1995

(c)Section 32 (the right to access to information): the Promotion of Access to Information Act, Act 2 of 2000

(d)Section 33 (the right to administrative justice): the Promotion of Administrative Justice Act, Act 3 of 2000

Directly or indirectly, numerous other acts give effect to the rights in the Constitution as well, as in the case of health, housing, education, the environment, the rights of children, the right to vote, and the rights of arrested and accused persons and prisoners. Section 234 creates yet another opportunity for such supplementary legislation.

  1. In addition to the importance of religion in the lives of the majority of individuals and communities in South Africa, there are a few reasons why a charter of religious rights and freedoms may serve a useful purpose.

5.1The right to freedom of religion as guaranteed in the Constitution is an important instrument regulating the relationship between religion and the state. As the supreme law of the Republic, the Constitution in effect restricts the powers of the state, because the state may not violate the rights in the Constitution without fulfilling the requirements of the Constitution. By providing more particulars about the content of the right to religious freedom, a charter of religious rights and freedoms will outline even more clearly the relationship between religion and the state, and will secure the relatively good relationship already existing between religion and the state. This relationship in terms of which freedom of religion and the jurisdictional independence of religious institutions over religious matters are recognised, and religion and religious institutions are protected constructively and impartially in the state, should be stipulated unequivocally in a charter of religious rights and freedoms.

5.2By leaving the right to religious freedom undefined in the Constitution, one actually accepts that the content of the right will be determined through court decisions and other measures on an ad hoc basis, in other words, as questions, issues and difficulties occur. This is a piecemeal process over which religious institutions have little control. Section 234, on the contrary, creates the possibility to propose a charter of religious rights and freedoms in which the content of the right is spelled out more fully in a single act of Parliament.

5.3Throughout history conflict between religion and the state occurred from time to time in most countries and there were even periods of large scale religious persecution. In our country, as well, issues sometimes occur over which religious institutions differ from the state or where the state take steps that limit or may limit religious freedom. By defining and stipulating this relationship clearly in an act of Parliament, unnecessary state interference with religion which may occur now or in future can be prevented, and uncertainty, misunderstanding and unnecessary conflict between religion and the state can be eliminated.

5.4A charter of religious rights and freedoms can contribute to the spirit of tolerance prevailing between the various religions in South Africa. Comparing to many other countries, South Africa is particularly blessed in this respect, and insofar as a charter of religious rights and freedoms can enhance this spirit, South Africans should do their utmost to maintain and strengthen the cordial relationship among the different religions. Moreover, it is our belief that a charter of religious rights and freedoms will deepen our understanding of basic values of justice, love, compassion, human dignity, democracy, rights and responsibilities, as well as the importance in our lives and in society of community and relationships with others.

  1. There are useful international examples of additional protection for religious freedom. All the primary international bills of rights protect the right to freedom of religion, but not a single one elaborates on the content of the right. (See for example Article 18 of the Universal Declaration of Human Rights, Article 18 of the International Convention on Civil and Political Rights, Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and Article 1 of the African Charter for Human and Peoples’ Rights.) That is why the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief, which spells out the content of the right to freedom of religion much more extensively, was adopted in 1981. Moreover, in 1992 the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities was adopted. Domestically as well as internationally there are in other words precedents for a charter of religious rights and freedoms.
  1. The objection is sometimes heard that conferring rights on people may lead to abuse and that a charter of religious rights and freedoms may open the door to various undesirable beliefs and practices. It is, for example, popular to state that the South African Bill of Rights protects only the criminals and not the victims. If understood and applied properly, that is not the result of a bill or charter of rights and freedoms. First, every right has a responsibility, because when exercising one’s right, everyone has the responsibility to respect that same right as exercised by another. That is why rights never apply without limitations – the rights of others impose obvious limitations on the rights of everyone else. Simply put, one person’s right to freedom of movement is limited by another person’s freedom of movement. If rights prove not to be protected effectively, it is therefore not so much the bill of rights itself that is at fault, but rather its ineffective enforcement. Second, as is the case with any other right, everyone exercises the rights in the proposed charter within the framework of the law of the land. The charter does not legalise or even open the door to any belief or practice that may involve or give rise to criminal activities or other objectionable actions prohibited by law.
  1. In the same breath people from one religion may frown upon the charter in apprehension that it opens the door to those from another religion to exercise their beliefs freely. The charter is indeed an impartial document that does not favour one religion over another. But in doing so it simply recognises the reality that South Africa is a multi-religious nation. The various religions cannot wish one another away. As a matter of fact, what is required from all of us is to respect the beliefs of others in recognition of one another’s human dignity and in a spirit of tolerance. That is the only way in which religious communities will be able to co-exist in peace and harmony, and in which one will earn respect for one’s own religion.
  1. It should be noted that the proposed charter is not a final document. It is a proposal by an interested group of people and everyone is welcome to contribute to its content. Any comments, suggestions and amendments are therefore invited and keenly expected. The more religious communities contribute to the shaping of the document, and eventually endorse or support it, the stronger they will be able to canvass its eventual enactment.
  1. It should further be emphasised that religious communities should take ownership of this initiative in order to implement it successfully. This should not be the initiative of a particular religion, community or committee. If religious communities are prepared to accept the charter as their own, join hands in taking it forward, and interact with the government with one voice, this charter of religious rights and freedoms will prove to be a milestone in the protection of religious rights and freedoms and in securing a stable, constructive and co-operative relationship between religion and the state.

Continuation Committee:

Charter of Religious Rights and Freedoms